United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NOS. 32,
WILLIAM H. ORRICK United States District Judge
James Acres seeks declaratory and injunctive relief against
defendants Blue Lake Casino & Hotel
(“BLC&H”), the Blue Lake Rancheria tribal
court, tribal judge Lester Marston, and Anita Huff
(“Clerk Huff”), asserting that the tribal court
lacks jurisdiction over him in an underlying contractual
dispute and that the individual court employees exceeded
their authority during the pendency of the tribal action.
Defendants move to dismiss to require Acres to exhaust his
tribal remedies. Mot. [Dkt. No. 32]. Because tribal court
jurisdiction is at least colorable, not futile, and neither
motivated by a desire to harass nor conducted in bad faith,
Acres is required to exhaust his tribal remedies before
bringing his lawsuit in federal court, and defendants’
motion is GRANTED.
is an employee and president of Acres Bonusing, Inc.
(“ABI”), a California distributor for Talo, Inc.
Compl. ¶¶ 4, 12 [Dkt. No. 1]. BLC&H sued Acres
and ABI in Tribal Court Case Number C-15-1215LJM, on January
12, 2016. Id., Exh. 5. That case concerns an
agreement into which ABI and Acres entered with BLC&H for
the purpose of providing BLC&H with the iSlot Platform, a
casino gaming platform developed by Talo, Inc. (the
“iSlot Agreement”). Id. ¶¶ 10,
11. BLC&H’s complaint asserts claims for breach of
contract, breach of the implied covenant of good faith and
fair dealing, unjust enrichment, and fraudulent inducement.
Id., Exh. 5.
January 17, 2016, Acres was served with the summons and
complaint in the tribal action. Id. ¶ 25. The
summons directed Acres to respond within “five (5) days
after service under pain of Default Judgment.”
Id. ¶ 26. On January 22, 2016, Acres went
before the tribal court to make specially appear for himself
and ABI, asserting that the court lacked jurisdiction to
proceed with the underlying tribal action. Id.
¶ 28. On January 25, 2016, Clerk Huff notified Acres via
email that his special appearances were rejected because they
did not comply with tribal court’s procedural rules.
Id. ¶ 29. The next day, Acres resubmitted his
special appearances. Id. ¶ 30. On February 16,
2016 Judge Marston issued an order rejecting the special
appearances and listing the ways in which the filings did not
conform to the tribal court’s rules. Id.
¶ 33; Exh. 16. The order provided Acres with 30 days to
file an answer or responsive pleading. Id. ¶
March 9, 2016, Acres and ABI filed the instant action in
federal court, alleging that it is “not possible for
the Tribal Court to provide due process to non-members
Acres” and that “because the tribal court answers
to the Tribe’s Business Council, and the Business
Council derives significant revenue for the Tribe from
BLC&H, it is unreasonable to expect the Tribal Court to
be an impartial arbiter in [this] dispute.”
Id. ¶ 50. Acres also asserts that he never
consented to tribal jurisdiction and that “[b]y the
Tribe’s own rules, [he] is clearly not subject to the
Tribe’s jurisdiction because he has never done business
with the Tribal Court’s territorial jurisdiction as a
natural person.” Id. ¶¶ 61, 57.
complaint presents five claims for declaratory and injunctive
relief: (i) a declaration that the iSlot Agreement does not
establish tribal jurisdiction over non-members of the tribe;
(ii) a declaration that the tribal court cannot provide due
process in cases involving tribal plaintiffs and non-tribal
defendants; (iii) a declaration that Clerk Huff exceeded her
authority by issuing the five-day summons; (iv) a declaration
that Judge Marston exceeded his authority by issuing the
February 24, 2016 order; (v) a declaration that defendants
“went outside the bounds of tribal law” by
serving the five-day summons and bringing the underlying
suit; and (vi) injunctive relief prohibiting defendants from
continuing the prosecution of the underlying tribal action.
Id. ¶¶ 71-84. Defendants moved to dismiss,
and I heard argument on July 20, 2016.
defendants make several arguments, this Order focuses on
whether this court lacks jurisdiction because Acres has not
exhausted his tribal remedies. On this threshold issue, I
agree with defendants.
may bring a federal common law cause of action under 28
U.S.C. § 1331 to challenge tribal court
jurisdiction.” Elliott v. White Mountain Apache
Tribal Court, 566 F.3d 842, 846 (9th Cir. 2009).
However, as a matter of comity, before bringing suit in
federal court non-Indians must generally first exhaust tribal
remedies. Id. at 846. The Supreme Court recognizes
four exceptions to this requirement: “(1) when an
assertion of tribal court jurisdiction is motivated by a
desire to harass or is conducted in bad faith; (2) when the
tribal court action is patently violative of express
jurisdictional prohibitions; (3) when exhaustion would be
futile because of the lack of an adequate opportunity to
challenge the tribal court's jurisdiction; and (4) when
it is plain that tribal court jurisdiction is lacking, so
that the exhaustion requirement would serve no purpose other
than delay.” Id. at 847 (internal quotation
marks, citations and modifications omitted). As to the fourth
exception, if the tribal court’s jurisdiction is
“colorable” or “plausible, ” the
district court is required to dismiss or abstain. See
Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d
943, 948 (9th Cir. 2008).
asserts that because the first, third, and fourth exceptions
apply he is not required to exhaust tribal remedies. Oppo. 12
[Dkt. No. 40]. I consider each argument in turn.
rests his arguments concerning the tribal court’s bad
faith on: (i) issuance of the initial summons that
incorrectly provided him with only five days to respond; (ii)
Judge Marston’s joinder in the present motion to
dismiss; and (iii) an “ambiguously ...